Intellectual Property Rights And Plagiarism Prof.

slide1. Intellectual Property Rights And Plagiarism Prof. Anand Paliwal
Dean, Faculty of Law,
Mohanlal Sukhadia University,
Udaipur (Raj.)<br>
slide2. CONTEXT In the twenty-first century, it is saying that nations capable of translating knowledge into social goods and wealth through creative ideas, research and development and innovations will lead the world. Innovation, R&D and time for adopting new knowledge have taken over cost to become important determinants of the market value of a product or service.

With the knowledge economy advancing, the existing development approaches and management cultures,  have to undergo a change. Particularly in understanding and managing the knowledge based assets, such as innovations, ideas and designs.

IPRs legally protect the rights of the author or creator (innovator), who have transformed his ideas into property others particularly pirates, imitators are barred from taking undue credit of the original creator.<br>
slide3. Intellectual Property[IP] may referring to what the human mind creates as unused, original and creative ideas, works or expression, including technology, design or literal work deserve to be protecting that can be protected.

Thus issues related to generation, evaluation, protection and exploitation of intellectual property would become critically important all over the world.

A human facilitating the socio-economic and cultural development  of the society requires encouragement, and the creator or the innovator must  be rewarded by suitable legal protection for his intellectual creation.<br>
slide4. Significance Intellectual property rights (IPR) has assumed significance in today's rapidly changing world dominated by forces of liberalization, privatization and globalization allowing free flow of goods and services, capital and human resources; advances in information and communication technologies and enhances scope of international governance maximizing of profits requires lowering of the overhead and other costs in addition of a constant adoption of technology, innovations through in research and development (R&D) and upgraded human resources.
The system of multilateral trade and emerging economic order has led to new uncertainties in the market. The uncertainty get compounded with equally important changes taking places in the socio-economic and political order of the society with increased freedom of expression, voting rights to youth, the rampant corruption through the close nexus between politics, bureaucracy and criminals the world has changed.<br>
slide5. A number of newly independent developing nations has also brought a change in the outlook of the nations state.
With ever increasing internationalization of the nation states and enhanced trade in goods and services, and the accompanying changes taking place in all spheres of the society, intellectual property rights (IPR) have become more vulnerable to infringements.
The central theme behind the IPRs is that the author should get his due to keep up with the technological development and to maintain the R&D costs. In an era of high rate of growth and development of the economy (7-8 percent per annum) one expects a wide range of IPs coming up, which require protection areas of software, management, designs, science and technology, market and business models etc.<br>
slide6. Understanding Intellectual Property Rights in Contemporary Perspective There are three types of Intellectual Property Rights- patents for invention. Copyright, for literary and artistic works and trademarks and names for the goodwill attached to marketing symbols.
All these protects through legal rights the application of idea and information which have some commercial value. In that sense, they are essentially negative as they are meant to stop others doing certain things created by right owners.<br>
slide7. Plagiarism The act of stealing another person's intellectual property (IP) which includes ideas, inventions, original works of authorship, words, slogans, designs, proprietary information, etc. and using them as your own without proper acknowledgment and/or permission of the original author or inventor. or in simple words it is the act of copying a work, wholly or partially, and then pretending to be its original author.<br>
slide8. Intellectual Property “Original and creative ideas or works that have economic value and which are protected by patent, copyright, trademarks and trade secret laws.”<br>
slide9. Intellectual Property (IP) Rights It is important to understand IP ownership rights not only to protect your IP, but also to avoid the possibility of infringing on someone else’s ownership rights.
Since IP can have commercial value, ownership rights are in some ways very similar to owning real estate. You can sell, license, inherit and use as a basis for loans.
Ownership rights are not a legal monopoly in that they do not give the owner the right to make use of the IP. Instead, they give the owner the right to exclude others from making use of the IP for a defined period of time. IP infringement cases in a court of law can lead to serious financial and professional consequences.<br>
slide10. The term “IP rights”, refers to patents, copyrights and trademarks, the former two of which are the means of protection of original creative works.
Patent laws protect inventions including new processes, articles of manufacture, compositions of matter, designs and plants.
Copyright laws protect literary and artistic works and covers IP from paintings to computer software.
Trademark laws protect words and symbols that are identifiers to certain brands, types of goods or services.<br>
slide11. Patents A patent in general is a document issued by government describing an invention and thereby creating a legal situation, so that the patented invention can be exploited (manufactured, used, sold, imported) with the authorization of the owner of the patent. “Invention” means a technological improvement over what is existing. It is a kind of solution to a specific problem in the field of technology related to a process or a product. The protection conferred by the patent is limited in time (generally 20 years).
There are three types of patents: Design, Utility and Plant (asexual reproduction). For these types of patents there is a legal ownership right for a limited period of time, patents are issued by the United States Department of Commerce and the Patent and Trademark Office.<br>
slide12. Traditional Knowledge Traditional knowledge is that is already known and represents an aggregation or duplication of traditionally known properties of traditionally known  components , and it does not add anything new and non-obvious to something that has been already known.  Hence traditional knowledge cannot be patented for reason of novelty and non-obviousness. However any invention that is based on such traditional knowledge is  patentable.<br>
slide13. In the case of Badische Anillin & Soda Fabrik vs Cochrane et al, a patent was granted for the process of making Anthracene. It is a product made from coal tar which in effect has similar properties, uses and chemical composition as Alizarine Alizarineis a natural dye known for a long time in the art of colouring, found in the roots of the Madder plant and the substance and its properties had been known for a long time in the art of colouring. The US Supreme Court observed  that a product based on traditional knowledge may  if, is patentable it meets the requirements of novelty, non-obviousness and utility.<br>
slide14. In Lux Traffic Controls Ltd. V. Pike Signals Ltd.
The defendant claimed that the plaintiff’s two patent in relation to traffic signal control systems were invalid of a number of grounds. The second patent was for a means of varying the intergreen period, the safety period between the lights in one direction changing to red and before the lights in the other direction changed to green. It was argued that the invention was obvious. The court found that the invention may have been simple, but question of obviousness depends on a great extent on the prior art.<br>
slide15. In Environmental Designs Ltd. V. Union Oil Co., the Court provided the following list of factors to be considered in determining the level of ordinary skill in the art:
1. The educational level of the inventors;
2. Type of problems encountered in the art;
3. Prior art solutions to those problems;
4. Rapidity with which inventions are made;
5. Sophistication of the technology; and
6. Educational level of active workers in the field.<br>
slide16. Trademarks It is a word, a name, a design, or a slogan, which identifies a certain product produced, or provided by a certain group or person(s), which solely identifies the source of the product.
The rights to words, names, slogans and designs are for 10 years and renewable every 10 years with evidence of use in commerce.
Trade Secrets: Any information that the owner decides to keep confidential for business reasons. This type of information could include the compilation of information, formula, pattern or device considered essential for possessing an advantage over one’s competitors.<br>
slide17. Generally speaking, a trademark refers to any visible sign (a design or a slogan) which helps in identifying or individualizing goods of a given enterprise; and further distinguishes them from those of others; and thus, it solely indicate its source of the product.
The distinguishing function of the trademark and its function of indicating the source are interdependent and cannot really be separated. Therefore, the trademark, can be defined as “any visible sign capable of distinguishing the goods or services of an enterprise from those of other enterprises.”<br>
slide18. Trade secrets Trade Secrets include any information related to the formula, pattern or device considered essential for possessing an advantage over one's competitors, which the owner decides to keep confidential for business reasons. Such ownership rights can conceivably last forever if the information is kept confidential.
However, there can be two or more independent owners of the information, if the information by another party with an independent discovery is kept confidential.<br>
slide19. The ownership rights can conceivably last forever if the information is kept confidential.
However, independent discovery or development of the proprietary information will then create two or more independent owners of the information, if they also keep the information confidential.<br>
slide20. Surname The question in Ashok Kumar Aggarwal v. Rajinder Kumar agarwal was weather the word “Aggarwal” is registrable as a trade mark. Aggarwal is a surname and name of a sect or a caste. Under Section 9 (I) (d) of the Act, the word “Aggarwal” is not registrable unless upon proof of distinctiveness.
A Surname or a name of a caste or sect is not an absolute disqualification for the purpose of its registration in part A of the register because by reason of section 9 (2) of the Act which provides that the mark shall be registrable in o part A of the register upon evidence of its distinctiveness. Hence a surname or name of a caste or sect is registerable “on the evidence of distinctiveness”. A surname can be registered in a Part “A” only on the evidence of distinctiveness.<br>
slide21. Laudatory Words The curt in Rhizome Distilleries (P) Ltd. v. pernod Richard S.A. France was concerned with the dispute relating to alcohol industry wherein the marks used were IMPERIAL BLUE and RHIZOME IMPERIAL GOLD and the court was concerned with the part of the mark IMPERIAL which was the full fledged word found in the dictionary.
The court observed that neither of the parties could have exclusive or proprietary rights in respect of the word Imperial which is not only in common parlance to be found in every dictionary but also is laudatory in nature as it alludes to royalty or grandeur.<br>
slide22. Badges of recognition In M.R.F. Ltd. V. Metro Tyers Ltd., the plaintiff sought an injunction restraining the defendant from selling auto rickshaw tyres having prominent features of the tread pattern similar to that of the tread pattern of the auto rickshaw tyres of the plaintiff, the court observed that in India , all the tyres are black and circular, the prominent distinguishing feature being the tread pattern and other patterns of arrangement.
The court was of the view that unlike a wrapper, a label or a container, the tread was not something external to the tyre but it was an indivisible part. The court felt that similarity of the tread pattern may also raise a presumption of common origin or close business association between the plaintiff and the defendant.<br>
slide23. In Parle Products (P) Ltd. V.J.P. and Co., the packets of biscuits manufactured by the appellants and respondents were practically of the same size, the colour scheme of the two wrappers was almost the same, and the designs on both, though not identical, bore such a close resemblance that one could easily be mistaken for the other.
This wrapper is used in connection with the sale of their biscuits known as “Parle’s Gluco Bisucites” printed on the wrapper. There was also said to be difference in the design of the buildings on the two wrappers and the words printed on the wrappers were distinct and separate.<br>
slide24. The Apex Court held that in order to come to the conclusion whether one mark is deceptively similar to another, the broad and essential features of the two are to be considered.
The court concluded that if one was not careful enough to note the peculiar features of the wrapper on the plaintiffs goods, he might easily mistake the defendants wrapper for the plaintiffs.<br>
slide25. Copyright Copyright law a branch of IPR deals with the rights of intellectual author (creators), various forms of creativity in print form and other ways in which mind can perceive and imagination can afloat to work on. Literary, dramatic, musical and artistic works and producers of cinematograph films and sound recordings are important components.<br>
slide26. A copyright pertains to the ownership rights for “original works of authorship fixed in a tangible medium.” It can be, for example, music, an article, a book, a performance, a photograph, graphics, a computer program and a play. Note that unlike patents, copyrights do not prevent others from independently and without actually copying the original works, practicing anything taught in the original works.
For example, X took some outstanding photographs of City Palace Udaipur. Anyone wishing to do so may take their own photographs from the precise site, X took his without infringing on any copyright his heirs may hold.<br>
slide27. Copyrights Ownership Rights:
• To reproduce works
• To distribute
• To display in public
• To perform in public
• To prepare derivative works<br>
slide28. Copyright protection has become the most important subject matter. Its basis lies in its personal character. It confers the exclusive legalrights, on authors (creator)to maintain their own terms and conditions for letting out their intellectual property.
The first copyright law, was enacted in the U.K. in 1709 and it is commonly known as the ‘Queen Anne's Statute'. As per standard terms, no copyrighted work can be reproduced, translated, adapted, exhibited or performed in public, distributed, broadcast or communicated to the public without the permission of its author.<br>
slide29. Internet information as it is available in public domain is also a subject matter of copyright. Information transmitted and transferred on internet may already be a copyrighted. But the situation becomes much more complicated when persons dealing with the transaction of information, the internet service provider, the content provider, the user person (downloading the information) and the bulletin board service provider are not identified. A collection of copyrighted works is transacted.<br>
slide30. Multimedia represents an amalgamation of computer programme, text, audio-visual work, databases and sound recording. These components may be separately protected through copyrights or some other regime. However, scholars have also observed that a multimedia work is neither a literary, dramatic work, musical nor it is a database or a computer programme.
However, the multimedia works have immense potential, digital revolution is benefitting the society and is turning out to be a large revenue generator for different stakeholders. But the unauthorized use of such copyrighted information is to be brought into the legal purview to ensure that internet does not encourage unlawful use of any copyrighted material.<br>
slide31. Unlike patents, copyright protects the expressions and its form and not the ideas. There is no copyright in an idea. But issues related to copyright offer a contradictory situation in developing countries, like India.
Authors and intellectual creators do not have very comfortable economic positions and need incentives and subsidies in the creation, production and management of literature including books or other educational material or library system and so on.
But on the other hand, society at large should be encouraged by making available the stocked intellectual properties to encourage R&D, creative idea, designs to root out socio-economic problems related to poverty, unemployment, and man illiteracy and give benefits of science.<br>
slide32. In R.G Anand v Delux Films (AIR 1978 SC 1613) The hon'ble Supreme Court  of India has laid down the following general propositions regarding infringement of a work:- 1. Copyright is not applicable in support matter an idea, subject matter, themes, legendary or historical facts. However, the manner, form, and expression of the idea of the copyrighted work fall in the domain of violation.
2. In case the same idea is developed in a different manner, manifesting may be using source the Courts will identify if the similarities are on substantial or fundamental points of the mode of expression adopted in the copyrighted work. The imitation with marginal variations here and there is a violation of copyright.<br>
slide33. 3. The third person, i.e. the reader, the viewer or the spectator after having read or seen both the works comes out with the opinion based on reasonable proof that the subsequent work appears to be a copy of the original.
4. There is no violation if the same theme is presented and treated differently and the final output turns out to be completely new work.
5. In case, there are similarities but dissimilarity in the contained material do not indicate intention to copy, and intention to copy the coincidences are clearly incidental.
6. The copyright violation must be proved by clear and cogent evidence.<br>
slide34. Music industry In the case of musical work, composer is the author under the Act and he alone has the copyright in a musical work. In a song, the words written as well as its music have copyright. Accordingly authors of these works are the lyricist and the composer respectively. The singer who sang the song has no copyright.
There is no copyright subsists with the writer of the lyrics or the composer of the music unless there is a contract stipulating otherwise when the music is included in the film.<br>
slide35. However, when a cinematograph producer commissions a music composer or a lyricist to compose music or write lyrics for the purpose of making a cinematograph film and, in return, pays them for their work, he or she (and not the composer or lyricist) becomes the owner of all the copyright in the work that is produced. Drama The copyright in a drama by an author written for a society, in the absence of a clear agreement to the contrary, vests with the author.<br>
slide36. Idea However, it is to be noted here that there subsists no copyright in case of mere ‘idea'. [Donoghue v. Allied Newspaper Ltd., (1937)3 ChD 503].
This fact was further established in a recent case in Bradford v. Sahara TV where the defendant, Sahara TV was accused of making a television series based on the idea expressed in one of best selling books by the plaintiff, Barbara Taylor.<br>
slide37. Moral Desert Theory, one argues that, “every man has a property in his own person”, i.e. the fruits of a man's labour belongs to him, but one cannot be sure the very same idea did not at the same moment enter some other mind.
Thus these rights can only be justified if they are implemented in such a way that rights of an individual are protected without infringing on another.<br>
slide38. Idea versus expression :
Law does not recognize property rights in ideas but only in the expression of the same in a particular manner adopted by the author. There is no copyright in ideas, schemes or method. Copyright is confined only to the subject.
The critical distinction between “idea” and “expression” is difficult to draw. Hand J candidly wrote, “Obviously, no principle can be stated as to when an imitator has gone beyond copying the ‘idea’, and borrowed its ‘expression’.<br>
slide39. In Anand Patwardhan v. Directorate General of Doordarshan.
The plaintiff had made a documentary film “Waves of revolution” in 1975. Defendant made a documentary film “26 June 1975” In 2003. The suit film is about to Bihar movement led by Jay Prakash Narayan, a freedom fighter and a revolutionary depicting the students’ revolt in Bihar, stated to have been repressed by the declaration of emergency in 1975.
There is no copyright in that idea. Anyone can portray the said idea in any work, including a cinematograph film. Once it is portrayed, be it by way of a film, the specific cinematograph shots of that film would have a copyright.
That mode of expression of that idea cannot be verbatim copied by taking shots or stills of the film containing that idea. Hence, whilst the idea is not unique to the author, the image portrayed or the expression made is unique to the author.<br>
slide40. In A. Balakrishanan v. R. Kanagavel Kamaraj, it was held that the grandson of the deceased political leader was held not entitled to prevent making of a film of the leader on the premise that he was not a custodian of history.<br>
slide41. Meaning of originality Law does not protect every expression. The law affords protection to expressions that are fixed in a medium and are original. In India Section 13,Copyright Act, 1957 states that only original literary, artistic, dramatic and musical works are subject-matter of copyright. A literary work, in order to qualify as work in which copyright can subsist, must, therefore, be original.<br>
slide42. The word original does not mean that the work must be the expression of original or inventive thoughts. Copyright Acts are not concerned with the originality of ideas, but with the expression of thought, and in the case of literary work, with the expression of thought in print or writing. The originality which is required relates to the expression of the thought. But the Act does not require that the expression must be in an original or novel form, but that the work must not be copied from another work- that it should originate from the author.
As regards compilation, originality is a matter of degree of depending on the amount of the skill, judgment or labour that has been involved in making the compilation. The words literary work cover work which is expressed in print or writing irrespective of the question whether the quality or style is high.<br>
slide43. The commonplace matter put together or arranged without the exercise of more than negligible work, labour and skill in making the selection will not be entitled to copyright.
Ladbroke (Football) Ltd. v. William Hill (Football) Ltd. Is a case where the concept of originality was considered on the basis of skill, judgment and labour in the context of compilation.<br>
slide44. In Gopal Das v. Jagannath prasad, the plaintiffs were the printers and publishers of books. The book titled Sachitra Bara Kok Shastra was printed for the first time in 1928 and had run into four editions. The defendants printed and published another book titled Asli Sachitra Kok Shastra in 1930. the plaintiff’s case was that the book published by the defendants was a colourable imitation of their book and an infringement of plaintiff’s copyright. It was held by the court that the plaintiff’s compiled their book with considerable labour from various sources and digested and arranged the matter taken by them from other authors.
The defendant cannot obtain the subject-matter from the plaitiff’s work and to adopt his arrangement with a slight degree of colorable variation. The court held that no one is entitled to avail himself of the same information, although ha may append additional information to that already published.<br>
slide45. In Agarwala Publishing House v. Board of High School and Intermediate Education.
The question involved was weather question papers are original literary work and come within the preview of section 13, Copyright Act, 1957. it was urged that no copyright can exist in examination papers because they are not original literary works referred to in section 13, Copyright Act, 1957 are not confined to the works of literature as commonly understood. It would include all work expressed in writing, whether they have any literary merits or not.
The court further held that the word original used in Section 13 does not imply any originality of ideas but merely means that the work in question should not be copied from some other work but should originate in the author, being the product of his labour and skill.<br>
slide46. In Rai Toys Industries v. Munir Printing Press.
The plaintiff had published a Tambola Ticket book containing 1500 different tickets in 1929. The Plaintiffs alleged that the defendants had brought out another ticket book which the plaintiffs claimed to have written in 1929 and registered as copyright.
The ticket book brought out by the defendants was alleged to contain 600 different tickets and the same had been copied identically from the books of the plaintiff.
It was held by the High Court that preparation of tickets and placing them in tables required a good deal of skill and labor and would, thus, satisfy the rest of being original literary work.<br>
slide47. The Plaintiff asserted copyright on the reports of the judgment made by it in the publication Kerela Law Times, including heads notes, short notes, long notes, citations, various copy editing imputes, etc. as published in Kerela Law Times of Plaintiff.
The court found that a law report is the result of the literary exercise of the editor. A report is a whole document and the copyright will have to rest on the report as a whole. If a reporter has presented a report, including a clear presentation of the text of the judgment, it is entitled to a copyright.<br>
slide48. A report of a judgment, which includes the entire text of the judgment and is placed as a report along with head notes or editorial notes and in any particular layout of a reporter and publisher, contains such originality bas requires it to be treated as an original literary work for the purpose of Section 13 (I) (a) of the Act. Short notes of cases also stand in the same footing.<br>
slide49. Sermons of religious preacher The Calcutta High Court answered in the affirmative, the question whether the works of a religious preacher in his own handwriting and the compilations of the discussion and sermons of a religious preacher are literary work within the meaning of the word “work” under the Copyright Act, 1957.<br>
slide50. Safe Guards Plagiarism is not necessarily equivalent to copyright infringement.
Generally speaking, reference to the original source material must be made as much as possible, and writers should nowhere give an impression of others' work to be his/her own.<br>
slide51. As “plagiarism” is a serious matter with important legal and ethical implications, academic, industry, government and private institutions should establish guidelines for avoiding theft of ideas or works under the umbrella of intellectual property in their respective environments.
These guidelines should provide clear definitions and examples for new students, faculty and/or employees. Consequences for violating these rules/guidelines should be clearly stated and enforced<br>
slide52. The use of mere facts irrespective of whether the facts come from public domain or copy righted works. They should not be treated as plagiarism when two or more persons come up independently with the same idea or analysis. There can be accidental plagiarism with somebody when they come out with child hood stories in creative works for his school/college assignment thought he had no recollection of her other repeatedly reading for him, the same.
But what is important is that original sources used in a work must be quoted clearly so as to give due credit to the original source.<br>
slide53. Student must observe academic codes of ethics to avoid all forms of plagiarism. The most rampant practice is web sites offering articles, essays, monographs and papers for sale to public and students, of course there is a database of sources which helps in identifying if there is any plagiarism though comparison.<br>
slide54. The Academic, industry and government institutions should establish guidelines for avoiding theft of original creative works that have economic value and are protected by intellectual property laws.
These guidelines should be readily available to students and/or employees with specific examples and consequences for violations.<br>
slide55. Thanks<br>